Liability of the state for a violation of the federal Family and Medical Leave Act of 1993, Fair Labor Standards Act, or Age Discrimination in Employment Act of 1967 or of Title I of the federal Americans with Disabilities Act of 1990

Bd. of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001).

2. Damages for a violation of the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits an employer, including a state, from discriminating against an individual 40 years of age or over on the basis of age.

Kimel v. Fla. Bd.

of Regents , 528 U.S. 62 (2000).

3. Damages for a violation of the Fair Labor Standards Act (FLSA), which requires an employer, including a state, to pay the federal minimum wage and 1.5 times the employee's regular rate of pay for hours worked in excess of 40 hours per week (overtime pay).

Alden v. Maine , 527 U.S. 706 (1999).

The U.S. Supreme Court has also recently held that a state employee may sue for damages for a violation of the family leave provision of the federal Family and Medical Leave Act of 1993 (FMLA), regardless of whether the state has waived its sovereign immunity ( Nevada Dep't of Human Resources v. Hibbs , 538 U.S. 721 (2003)), but did not rule on whether a state employee may sue for damages for a violation of the medical leave provision of the FMLA absent a waiver of sovereign immunity.

This bill provides that the state may be sued in a federal or state court of competent jurisdiction for a violation of the ADA, the ADEA, the FLSA or the FMLA and, in an action for a violation of any of those acts, is liable for all remedies that are available for such a violation to the same extent that a public entity other than a state is liable.

Accordingly, under the bill, if an employee of the state sues the state for a violation of the ADA, the ADEA, the FLSA or the FMLA, the state may be ordered as follows:

1. Under the ADA, to take appropriate action, including the provision of back pay, and to pay compensatory damages for future pecuniary losses and for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses of up to $300,000, depending on how many employees are employed by the employer. The state Fair Employment Law, which similarly prohibits discrimination on the basis of disability, permits an award of back pay, but not of compensatory damages.

2. Under the ADEA, to take such action as will effectuate the purposes of the ADEA, including the provision of back pay, and, if the violation is willful, to pay an equal amount of liquidated damages. The state Fair Employment Law, which similarly prohibits discrimination on the basis of age, permits an award of back pay, but not of liquidated damages.

3. Under the FLSA, to provide back pay and to pay an equal amount of liquidated damages. The state Minimum Wage Law, which similar requires an employer to pay the state minimum wage and overtime pay, permits an award of the wages due, plus increased wages equal to 50 percent of the amount of wages due or, in certain cases, increased wages equal to 100 percent of the amount of wages due.

4. Under the FMLA, to provide back pay or pay actual monetary losses, plus interest, and to pay an equal amount of liquidated damages. The state Family and Medical Leave Law, which similarly requires an employer to provide family and medical leave, permits an award of back pay and damages, but not of liquidated damages.